This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
State of Minnesota,
Pedro Charles Flores, Jr.,
Cottonwood County District Court
File No. K998167
Mike Hatch, Attorney General, Natalie E. Hudson, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
David P. Honan, Cottonwood County Attorney, 1011 4th Avenue, Windom, MN 56101 (for respondent)
John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Harten, Presiding Judge, Randall, Judge, and Halbrooks, Judge.
This appeal arises out of a conviction of three counts of fourth-degree criminal sexual conduct and one count of furnishing alcohol to a minor. Minn. Stat. §§ 609.345, subd. 1(b), 340A.503, subd. 2(1) (1998). Appellant argues that the prosecutor committed prejudicial misconduct during closing argument. Because we hold that the challenged conduct was improper and served to deprive appellant of a fair trial, we reverse and remand for a new trial.
Appellant Pedro Charles Flores, Jr., was charged with three counts of fourth-degree criminal sexual conduct and one count of furnishing alcohol to a minor, in addition to other offenses not relevant to this appeal. Prior to trial, the state notified the trial court of its intention to offer into evidence two of Flores’s prior convictions. Specifically, the state sought to admit Flores’s 1989 conviction for criminal sexual conduct in the third degree, and his 1997 conviction for fifth-degree assault in which the underlying facts involved sexual misconduct. The state’s motion was argued on May 12, 1999.
The trial court characterized the two convictions as Spreigl evidence and issued a preliminary order on May 14, 1999, finding that the evidence was being offered to show a common scheme or plan, that the evidence was relevant, and that there was clear and convincing evidence of Flores’s participation in the 1989 incident. The trial court indicated that it was reserving its ruling as to whether there was clear and convincing evidence regarding the 1997 incident. While making a preliminary finding of admissibility of both convictions, the trial court reserved a final determination as to whether the probative value of the evidence was outweighed by the danger of unfair prejudice until completion of the state’s case-in-chief.
Flores’s counsel mentioned a prior criminal-sexual-conduct conviction in opening statement, presumably as a way to defuse the information. The state made no reference to any prior conviction in its opening statement.
The testimony at trial was that Flores lived in the Windom Apartments in spring 1998. Ronald Martins lived one unit away from Flores with his daughters D.M. and T.M. D.M. was 12 years old and had a 13-year-old friend, M.B., who would often visit D.M. and stay overnight.
D.M. and M.B. visited Flores in his apartment during the spring of 1998. M.B. testified that on several occasions she drank beer and smoked marijuana that Flores provided. M.B. stated that Flores demanded sexual favors in exchange for the alcohol and drugs. These included asking M.B. to kiss him, sit on his lap, and accompany him into his bedroom. M.B. testified that Flores touched her breasts and buttocks on more than one occasion and once tried to touch her crotch. M.B. further testified that she resisted Flores’s uninvited advances.
D.M. corroborated M.B.’s testimony. Both M.B. and D.M. testified that Flores encouraged their silence by suggesting he would reveal their marijuana use if they told anyone about his sexual advances toward M.B.
M.B. testified that she never told her parents about Flores’s sexual advances because she did not want them to know she was smoking marijuana and drinking. The events came to light when D.M.’s aunt found some letters that M.B. had written to D.M. that discussed their drug and alcohol use at Flores’s apartment. D.M.’s aunt turned the letters over to the Windom police. When M.B. found out about the letters being disclosed to the police, she confided in her school counselor, Dawn Morrison. Morrison testified that M.B. had reluctantly disclosed Flores having touched her on repeated occasions. As required by statute, Morrison reported M.B.’s allegations to the Windom police.
After the state rested, the trial court ruled that the 1989 conviction could not be used for Spreigl purposes. The court felt the state’s case was strong and that use of the Spreigl incidents “would be unduly prejudicial.” But the trial court ruled that the 1989 conviction could be used for the purpose of impeachment, if Flores testified.
The trial court made no ruling on the sexual misconduct involved in the 1997 assault conviction until after the defense rested, when the state renewed its Spreigl motion. The trial court denied the state’s motion to admit the sexual misconduct facts from the 1997 conviction as Spreigl evidence.
During closing argument, the prosecutor made three separate references to Flores’s 1989 conviction. The defense failed to make an objection to the first reference. In response to an objection to the prosecutor’s second reference, the trial court sustained the objection and gave the jury a curative instruction. The defense also objected to the prosecutor’s third reference to the 1989 conviction, but the objection was overruled. Flores was found guilty of furnishing alcohol to a minor and three counts of criminal sexual conduct in the fourth degree. This appeal follows.
D E C I S I O N
Flores contends that he is entitled to a new trial because the state committed prejudicial misconduct in its closing argument by referring three times to Flores’s 1989 conviction of criminal sexual conduct. Prosecutorial misconduct results in a new trial only when, viewed in the light of the whole record, it “appears to be inexcusable and so serious and prejudicial that defendant’s right to a fair trial was denied.” State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980). A claim of prosecutorial misconduct must be preserved for appeal by making the proper objection and request for curative instruction. Sanderson v. State, 601 N.W.2d 219, 224 (Minn. App. 1999).
After completion of the state’s case-in-chief, the court made the following ruling:
Based upon the testimony and evidence that has been submitted thus far, the Court finds that the State’s case is strong and includes corroboration to a level that the Spreigl incidents would be unduly prejudicial.
I, in making this finding, further note that counsel for the Defendant has told the jury of prior -- a prior sexual conviction; and if Defendant testifies, that could be subject to impeachment.
Flores went on to testify in his own behalf, denying that he touched M.B. On direct examination, he was asked the following questions regarding the sexual assault which occurred in 1989:
Q. During that time, you pled guilty to criminal sexual contact, correct?
A. Yes, I did.
Q. Why did you plead guilty in that case?
A. Because I was guilty, you know. I mean, I did something wrong, and I regret it, because I never have been guilty my whole life. I have been in trouble, you know, but I pled guilty because I was guilty. That girl came naked where I was standing, you know, and I did wrong.
Q. She was underage?
A. I didn’t know how old she was. I pled guilty to that. I didn’t know how old she was.
Q. If you were guilty of this offense, would you plead guilty to it?
A. Yes, sir. If I were guilty, I would be pleading guilty. I don’t want to be pleading guilty for something I didn’t do and go to prison for something I didn’t do.
On cross-examination, the following exchange occurred:
Q. Now, Mr. Flores, when you pled guilty to the third degree criminal sexual conduct charge arising out of Kandiyohi County, during your plea did you not state under oath that you knew the victim was not 16 years or older?
A. I did because it was a plea bargain that I have to say it. My lawyer advised me to say everything that I knew, yes. But I didn’t.
In a relatively short closing argument, and despite the trial court’s denial of the state’s Spreigl motion, the state referred to Flores’s 1989 criminal-sexual-conduct conviction three times.
The first reference occurred during a discussion of M.B.’s credibility and reasons why the jury should believe her version of events.
[I]t is consistent with other incidents. It is consistent with the repeated fondling of her by the Defendant. It is consistent with his sexual interest in her. It is consistent, also, with his prior conviction for criminal sexual misconduct involving an underage child.
The defense failed to object to this first remark. Defense counsel has a duty to object to improper statements during closing arguments and seek a curative instruction. State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984). Ordinarily, a failure to object constitutes a waiver of the issue on appeal, and an appellate court may infer that defense counsel did not consider the argument to be improper. Sanderson, 601 N.W.2d at 224. But this court may consider an appellant’s claim of prosecutorial misconduct despite a failure to object at trial if the error is sufficient to do so. State v. Ives, 568 N.W.2d 710, 713 (Minn. 1997).
The state raised the issue of the prior conviction a second time in the course of suggesting the similarity of Flores’s current offense to his prior offense:
His promises to supply her with alcohol, or whatever she wants, in return for some sexual activity is another clear set of examples of sexual interest.
So is his prior offense. Again, we have got another prior victim, underage victim, and here we have got a similar-type situation --
Flores’s counsel objected, asking that the comment be stricken. The objection was sustained and the jury was instructed to disregard the last statement.
The state’s third reference occurred as the prosecutor was concluding his summation:
[T]he fact that two teenage girls may have showed some poor judgment and made some mistakes is in no way an excuse for the Defendant’s behavior. He has preyed on these two girls as he has preyed on others, including the 16 year-old in the other charge.
Defense counsel again objected, asking that the comment be stricken. The objection was overruled.
In its final instructions, the trial court gave the following jury instructions to address the subject of Flores’s prior conviction for criminal sexual conduct:
You are to disregard all evidence which I have ordered stricken or have told you to disregard.
* * * *
In the case of Defendant, you must be especially careful to consider any previous conviction only as it may affect the Defendant’s credibility. You must not consider any previous conviction as evidence of guilt of the offense for which the Defendant is on trial here.
When a trial court gives a curative instruction, as it did in this case, it is generally considered to offset or ameliorate the impropriety. See, e.g., State v. Sewell, 595 N.W.2d 207, 214 (Minn. App. 1999). But in this case, it is questionable whether these instructions could remove the taint of the state’s repeated references to the prior conviction.
Where * * * the impact of the prejudicial remark may be such as to impart to the minds of the jury substantial prejudicial evidence not properly a part of the case, it is taking too much for granted to say its effect can be removed by an instruction from the court.
State v. Reardon, 245 Minn. 509, 513, 73 N.W.2d 192, 195 (1955).
The state argues that Flores put his credibility and character at issue by his testimony and “opened the door” for impeachment with his 1989 conviction. But this argument is inapplicable to the case. The state’s use of the prior conviction cannot be fairly characterized as impeachment. It was designed to encourage the jury to conclude that Flores acted in conformity with prior acts and, thus, was guilty here. Such a use is prohibited. Minn. R. Evid. 404(b).
It is clear that prosecutorial misconduct occurred in this case. The state goes so far as to acknowledge that there was misconduct. The error and its impact must be examined within the context of the record in its entirety, considering the strength of the state’s evidence and the weakness of any defense evidence. State v. VanWagner, 504 N.W.2d 746, 749 (Minn. 1993).
When misconduct has been established, as in this case, we must still determine whether the defendant was denied a fair trial. State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995). Not every instance of misconduct warrants a new trial. State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997). Generally, a defendant will not be granted a new trial if the misconduct was harmless. State v. Atkins, 543 N.W.2d 642, 648 (Minn. 1996).
The test of determining whether prosecutorial misconduct was harmless depends partly upon the type of misconduct with which we are dealing. That is, the more serious the misconduct, the more certain of its effect this court has felt that it should be before labeling the error harmless. Thus, in cases involving unusually serious prosecutorial misconduct this court has required certainty beyond a reasonable doubt that the misconduct was harmless before affirming. * * * On the other hand, in cases involving less serious prosecutorial misconduct this court has applied the test of whether the misconduct likely played a substantial part in influencing the jury to convict.
State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974) (citations omitted).
We find the prosecutor’s repeated references to Flores’s prior offense for the purpose of establishing a propensity to commit similar offenses to be particularly egregious. Therefore, this misconduct was harmless only if, beyond a reasonable doubt, the verdict rendered was “surely unattributable to the error.” Ashby, 567 N.W.2d at 28 (citation omitted). Here, the prosecutor ignored the trial court’s ruling and intentionally used prior offenses ruled inadmissible as Spreigl evidence to attack appellant’s character and to establish the appellant’s propensity to commit sexual misconduct. Viewing the prosecutor’s closing argument as a whole, the misconduct was not harmless beyond a reasonable doubt.
Reversed and remanded for a new trial.
 Resp’t Br. at 12:
Here, the prosecutor’s comments were hard-hitting, and admittedly made reference to defendant’s past character and arguably suggested that he acted in conformity with that character in this case.